Private Law Theory

ABSTRACT
This Article reviews and proposes a revision of the orthodox academic view of the negligence breach of duty requirement. The orthodox view comes from Oliver Wendell Holmes’s treatment in his book, The Common Law, and stresses the defendant’s conduct. According to Holmes, negligence is conduct ‘on the wrong side of the line’. Hence, negligence is the failure to have a spark arrester on one’s locomotive, the failure to check one’s blind spot before changing lanes, and the failure to retrieve all sponges before closing a patient. Legal economists have built on this view. They have argued that negligent conduct is that which fails the Learned Hand formula, in other words, conduct that lacks cost-beneficial precautions. Legal economists have also posited that juries as well as judges use cost-benefit analysis to assess negligent conduct. Legal philosophers, although they often reject cost-benefit analysis, also adhere to Holmes’s conduct theory of breach of duty. Nevertheless, a close analysis of modern negligence cases reveals that American juries are often allowed and even encouraged to forgive negligent conduct. They routinely forgive failures to check blind spots, failures to retrieve all sponges from patients, failures of pharmacists to dispense the correct drugs, and the like. In the present century, this practice of jury forgiveness, and courts’ acceptance of it, seems to be becoming more common. This Article explores the true legal structure of breach of duty and how it diverges from Holmes’s conduct theory and the orthodox academic view of negligence, which is still based on Holmes’s conduct theory.

Mark F Grady, The American Negligence Rule, 53 Valparaiso University Law Review 545 (2019).

First posted 2020-04-02 05:47:32